Archive for the ‘Chapter 9’ Category
Standards of Criminal Advocacy: reports from the Solicitors Regulation Authority and the Bar Standards Board
In November 2015, I noted in this blog the critical report by Sir Bill Jeffrey on standards of criminal advocacy. I also noted the consultation paper on the subject issued by the Government.
In June 2018, the SRA and the BSB published two reports on the subject.
The first report explores the views of the judiciary on the current quality, provision and regulation of advocacy within the criminal courts. The Judicial Perceptions Report, involved in-depth interviews with 50 High Court and circuit judges.
Key findings were:
- While judges viewed the current quality of advocacy as competent, some felt that standards were declining in some areas, especially in relation to core courtroom skills such as case preparation and dealing with some witnesses.
- Advocates’ skills in dealing with young and vulnerable witnesses are largely improving.
- The most commonly cited barrier to high quality advocacy was advocates taking on cases beyond their level of experience.
- Judges were uncertain over when, and how, they should report poor advocacy to regulators.
The second report arose from a Thematic Review of Criminal Advocacy, undertaken by the SRA. It was informed by data gathering and interviews with 40 solicitors’ firms actively involved in providing advocacy by solicitors within the courts.
Key findings of the SRA’s thematic review included:
- Firms use in-house solicitors to support the vast majority of criminal work in magistrates’ courts and youth courts (90 percent), and 29 percent of work in the Crown Court.
- The solicitors’ advocacy market is dominated by smaller firms and increasingly ageing individuals, while the number of new entrants to the market is falling.
- Levels of complaints regarding advocacy work are relatively low (22 recorded complaints in two years across all 40 sample firms).
- Approaches to training are inconsistent, with its delivery often infrequent, limited or not planned.
To me, the most concerning finding is that those doing this work are aging and are not currently being replaced by younger colleagues. It may be assumed that the cuts to criminal legal aid have had an impact on this.
Building upon the findings of both reports the SRA will be undertaking further work to understand the work of solicitor advocates. The Bar Standards Board also intends to publish its strategy for assuring the quality of advocacy shortly.
The reports can be accessed at https://www.barstandardsboard.org.uk/media-centre/press-releases-and-news/regulators-publish-reports-into-criminal-advocacy-standards/
or https://www.sra.org.uk/sra/how-we-work/reports/criminal-advocacy.page
Diversity in the Judiciary: slow progress
The judicial diversity statistics were published on 12 July 2018. They are based in information as at 1 April 2018. The statistics show there has been further, albeit slow, progress in the appointment of women in judicial posts; there has been some progress, though less than for women, in the appointment of those from Black and Ethnic Minorities groups as judges. that:
- 29% of court judges and 46% of tribunal judges were female. 50% of non-legal members of tribunals were female.
- Around half of court judges aged under 50 are female. Females outnumber males among tribunal judges at all age groups under 60.
- 24% of Judges in the Court of Appeal and in the High Court were female.
- 41% of Upper Tribunal Judges were female.
- Since 2014 there has been a 5-percentage point increase in female representation among court judges.
- 8% of judges identified as BAME (7% of court and 11% of tribunal judges); non-legal tribunal members 17%
- BAME representation among court judges aged 40 or over (98% of judges) was only slightly below that of the working age general population in each age band, while BAME representation among tribunal judges was higher than that of the working age general population at all age bands from 40 and over. Non-legal members have considerably higher BAME representation than that of the working age general population at all age groups.
- A third of court judges and two thirds of tribunal judges are from non-barrister backgrounds.
- More than half of magistrates were female (55%)
- 12% of magistrates declared themselves as BAME.
- There were very few magistrates aged under 40 (4%) compared with 55% of magistrates who were aged over 60.
On 27 June 2018 (outside the period used for the report) the appointment of three Lady Justices and four Lord Justices of Appeal were announced. On 9 July 2018 the appointment of five High Court Judges were announced, three of which were male and two of which were female. These will be reflected in the statistics for 2019.
The full report is available at https://www.judiciary.uk/about-the-judiciary/who-are-the-judiciary/diversity/judicial-diversity-statistics-2018/
There are two major challenges relating to judicial appointments which have been aired recently.
First, there are concerns at the significant reduction in the numbers of Lay Justices who sit in Magistrates’ Court.
Second, there are concerns about unfilled appointments to the High Court, attributed to recent reductions in the pay and benefits associated with these appointments. This is an issue currently under review by the Senior Salaries Review Body. The outcome of the consultation is currently awaited. It was the subject of a recent speech given by the Lord Chief Justice.
See https://www.gov.uk/government/consultations/major-review-of-the-judicial-salary-structure
The Lord Chief Justice’s speech is at https://www.judiciary.uk/wp-content/uploads/2018/07/20180704-lcj-speech-mansion-house-speech.pdf
Preventing digital exclusion
A great deal of effort is currently being put into finding ways of using IT to deliver legal services, whether in the form of: providing legal advice and assistance to those who need it; conducting various types of legal activity/process on-line; dealing with disputes online.
In general, the modernisation of the practice and procedure of the law through IT is to be welcomed. At the same time, there are concerns that some of the most vulnerable in society may be excluded from this brave new world. They may not have easy access to computers, or the ability to use them. In rightly encouraging digital solutions, at the same time policy makers need to ensure that the most vulnerable are not left behind.
In a recent policy paper, the human Rights group JUSTICE has drawn attention to the importance of ensuring that people are not excluded from the rapidly developing digital legal world.
In their report Preventing digital exclusion from online justice (published in June 2018), they analysed the potential issues that those engaged in the reform of legal procedures need to bear in mind.
The report makes a number of recommendations, directed primarily at HM Courts and Tribunals Service. They include:
- Greater investment in “trusted faces” in “trusted places” i.e. services already providing digital support and internet access.
- Considering the specific challenges of providing support to the digitally excluded, especially hard to reach cohorts – including testing Assisted Digital services in regions where the internet may be difficult to access. (Assisted Digital envisages a flexible mix of telephone, webchat, face-to-face, and paper-based support services. HMCTS is commissioning a programme of work to evaluate what types of support and in what combinations works best.)
- Paying specific attention to highly digitally excluded groups, like homeless people and detainees.
- Designing online justice services with an independent “look and feel” to reflect the constitutional independence of the courts.
- Maximising the benefits of the “multi-channel” approach – helping people move with ease between digital access, phone assistance, face-to-face assistance, and paper.
- Ensuring online justice services cater for the most affordable and ubiquitous mode of digital interaction: mobile technology.
- Conducting end-to-end pilots of online justice services, learning from hearing and enforcement stages what is required at earlier stages.
- Researching how people behave in an online environment and choices between Assisted Digital channels.
- Collecting and making available the widest range of data possible to support research by external experts.
Internationally, there is a great deal of experiment going on with different forms of communicating advice and assistance. There are being kept under review by Professor Roger Smith who, with funding from the Legal Education Foundation, provides – among other things – an annual review of development in the use of IT to increase access to justice. He also writes a blog which looks in mor detail at specific initiatives relating to trying to improve access to justice – not just through the use of new technologies but also new ways of funding them such as crowd funding.
For those interested in how the application of new technologies might change ways in which the delivery of legal services are undertaken, this is an outstanding resource – full of links to detailed initiatives. At the same time, the need for realism in potential impacts is also stressed. It is important not always to believe the hype surrounding new applications.
The JUSTICE report is at https://justice.org.uk/new-justice-report-on-preventing-digital-exclusion/.
The Annual Reviews of digital delivery of legal services can be found at https://www.thelegaleducationfoundation.org/digital/digital-report.
Roger Smith’s blog on developments in Law, technology and Access to Justice is at https://law-tech-a2j.org/publications/
Also relevant is the report, published in July 2018, from the Centre for Justice Innovation, which also looks at public attitudes towards the greater use of IT in the justice system.
Equal treatment: Guidance from the Judicial College
It should go without saying that, particularly in the legal arena, those who take part in proceedings before courts and tribunals need to feel that they have been treated equally.
This is, of course, easier said than done, as David Lammy’s report on the Criminal Justice System, published in 2017 showed. (See this blog 29 Sept 2017). But for many years first the Judicial Studies Board and now the Judicial College have offered guidance to judges (and by extension to others involved in the justice system) about the best ways to try to ensure that people are treated fairly.
Much of this focusses on the language that judges and others involved in the justice system use generally (for example in relation to litigants in person) and in relation to those from specific sectors of society, who may be defined by their religion, their ethnicity, their sexual orientation, mental or physical disabilities, their gender.
In February 2018, the Judicial College published an on-line updated revision to its ‘Equal Treatment Bench Book’. Bench books were originally devised as a handy guide to key issues which could sit on the judge’s desk, available for him to refer to it that seemed necessary.
I am not sure whether this particular Bench Book can be used in this way. For one thing, it is very long – well over 400 pages. And the issues raised are such that I would have thought judges would need to have considered them before a case or other proceedings have started. (It would not be desirable for a judge to stop in the middle of a sentence in order to look up how a particular person should be addressed.)
But I don’t agree, as some comments in the press have suggested, that the Equal Treatment Bench Book is an example of political correctness gone mad. It seems to me to be an honourable attempt to raise questions and address issues that arise in practice but that many judges may not have thought about before. (Indeed, I think there are some parts of the book that would be of interest to a wider readership.)
I set out the link to the text here, and invite readers to take a look at the Book and come to their own view on its value.
Innovation in the provision of legal advice
Lawyers do not always get a good press. But an interesting paper, recentlypublished by the Human Rights Group JUSTICE (I declare an interest – I am a member of its Council), shows that there are many who still want to deliver legal services to the most disadvantaged people in our society.
In Innovations in personally-delivered advice: surveying the landscape the paper takes a look at how dedicated lawyers and others in the advice sector have sought to devise new ways of delivering advice to members of the public. The cuts to Legal Aid have not deterred them from wanting to provide a public service.
The importance of these services was stressed both in the Low Commission report in 2015, and the Bach report in 2017 – both of which called for their development. What the JUSTICE report shows is how, in a time of austerity, it is still possible to offer at least some services in new an innovative ways.
A number of important points emerge from the survey:
- First is that taking legal advice to places where those who might want that advice go might be more effective than expecting people to come into solicitors’ offices. Thus the report gives examples of outreach work being undertaken in doctors’ surgeries, foodbanks, prisons, ‘pop-up’ clinics in libraries, branches of Tesco, and university Law Clinics.
- Second, providers may need to consider new partnerships with both the private and charitable sectors to fund new initiatives. The report gives examples of new partnerships with the private sector (e.g. banks – offering advice on debt ) and the charitable sector (e.g. Dementia UK offering advice for dementia sufferers and carers). Moves towards greater corporate social responsibility may offer new opportunities for innovation.
- Thirdly, the report gives examples of advice providers taking advantage of the new rules on Alternative Business Structures to develop new ways of delivering face-to-fact advice services. For example, with Gateshead Enterprises’ Job Law, “the first consultation is free and any further advice required is on a ‘pay as you go’ basis”; the chargeable advice is half price; and any profits are channelled directly back into Citizens Advice Gateshead to ensure it can continue its work.
This is not designed to be a comprehensive report on everything that is happening in the advice sector. But, given how easy it is to assume from the media that the cuts in legal aid and other sources of funding for the advice sector have almost destroyed the advice sector, I think it important to know that dedicated individuals continue try to deliver a service to those who most need such services. The examples given in this paper show that the green shoots of innovation are, if not yet flourishing, beginning to emerge from a very hard economic climate.
I hope the examples given here will inspire others to bring forward their own ideas and initiatives.
The JUSTICE report is available at https://justice.org.uk/innovations-personally-delivered-advice-surveying-landscape/
Practitioners and academics: new alliances
In my book Introduction to the English Legal System, I argue that legal academics play an important role in the development of our understanding of the law and that their role should be given more recognition than it sometimes has had in the past. (See Chapter 9, section 9.10).
Recently, however, my interest has been stimulated by stories in the professional legal press concerning a rather different collaboration between the world of legal practice and the academic world.
A number of firms, particularly those engaged in personal injury litigation, have been working with academic statisticians and ‘decision scientists’ to try to understand what are the variables that are in play when litigation is under consideration and thus trying to understand better the risks of taking particular cases on and to predict better the potential outcome of issues that are being litigated. This may help practitioners to decide whether a case should settle, or be fought through to trial.
The firms concerned think this may be beneficial both for small value large volume groups of claims, as well as high value claims. One finding that has emerged from this work is that the models that are being used suggest that the upper level of the Judicial College Guidelines on damages for different types of injury is almost irrelevant in most cases.
It is possible that this approach might also be used by the Courts and Tribunals service to analyse cases that pass through the courts. It might help, for example, in making determinations on which cases might be suitable for the small claims track or the fast track in the allocation of civil disputes in the county court – a possibility hinted at by Sir Ernest Ryder in a recent speech where he said:
Digitisation will, if we are sensible, provide us with the opportunity to gather data on the operation of our justice systems in ways that we have often been unable to before. It provides us with the opportunity to make our justice systems more adaptive; but again, only after proper scrutiny and discussion.
It seems to me that these initiatives will grow in number in the near future. What will be needed is proper evaluation of these tools to see whether they do in fact assist in both legal and judicial practice, and how they might be developed.
For press reports on these initiatives see https://www.legalfutures.co.uk/latest-news/hodge-jones-allen-embraces-predictive-modelling-pi-work; and https://www.legalfutures.co.uk/latest-news/leading-law-firm-joins-forces-lse-professors-find-ways-predict-litigation.
Sir Ernest Ryder’s speech is at https://www.judiciary.gov.uk/wp-content/uploads/2018/02/ryder-spt-open-justice-luxembourg-feb-2018.pdf
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 